Michael James Intended v 1) Tasman Gaming Inc. 2) Betcorp Ltd
| Jurisdiction | Antigua and Barbuda |
| Judge | RAWLINS, J.A.,Hugh A. Rawlins,Justice of Appeal |
| Judgment Date | 08 February 2007 |
| Judgment citation (vLex) | [2007] ECSC J0208-1 |
| Court | Court of Appeal (Antigua and Barbuda) |
| Docket Number | CIVIL APPEAL NO.6 OF 2006 |
| Date | 08 February 2007 |
IN THE COURT OF APPEAL
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CIVIL APPEAL NO.6 OF 2006
Mr. Sydney P. Christian, QC, for the Appellant, with him Mr. Jason Martin for the Intended Appellant/Applicant
Mr. Clement E.M. Bird for the Respondents
Tasman and Betcorp, the respondents in these appeal proceedings, filed a claim in the High Court which initiated proceedings against Mr. James, the intended appellant/applicant, and 6 other defendants. The gravamen of the claim is that Mr. James and another defendant colluded with the other 5 defendants to facilitate the alteration of their (Tasman and Betcorp's) information systems network, thereby causing them (Tasman and Betcorp) to transfer monies to the accounts of the 5 other defendants. According to the claim, the 7 defendants then received the monies and converted them to their own use, thereby causing Tasman and Betcorp to suffer loss.
At the time when the claim form was filed Mr. James was residing outside of the jurisdiction of the Court. On 1 st December 2005, Master Mathurin granted leave to Tasman and Betcorp to serve the claim form on Mr. James by publishing it in a daily newspaper in Antigua. 1 On 11 th April 2006, the Master set aside her December 2005 order. However, she refused to set aside the service of the claim form which was served pursuant to the December 2005 order. She stated that the setting aside the order did not automatically invalidate any steps that were taken on the order before it was set aside. She said, in the second place, that the order succeeded in bringing the claim to the attention of Mr. James who subsequently acknowledged service and instructed counsel to challenge the validity of that service.
The December 2005 order had directed Mr. James to file an acknowledgement of service of the claim form within 14 days and a defence within 28 days of 11 th April 2006. He filed an acknowledgement of service on 17 th January 2006 for the purpose of challenging service. In the acknowledgement, while he gave the name and address of the solicitors who entered the acknowledgement of service as the address for service, he stated that his own address was "out of the jurisdiction".
On 26 th April 2006, Mr. James applied for leave to appeal against the Master's order of 11 th April 2006 and for a stay of that order. He did not file a defence and Tasman and Betcorp entered judgment in default of defence against him. 2 In his application, Mr. James agrees that the learned Master correctly set aside her order of December 2005 order. He contends, however, that she erred when she refused to set aside the actual service of the claim form.
Tasman and Betcorp have also applied to this court, pursuant to rule 62.17, for an order that Mr. James be directed to give security for their costs in these appeal proceedings. In that application, they also prayed for a stay of the application for leave to appeal until Mr. James gives security for their costs. They further prayed that the application for leave to appeal should automatically stand dismissed if security is not entered within 14 days of the issue of the order for security for their costs.
In their affidavit in support of this application, the applicants stated that the security is necessary because Mr. James is now out of the jurisdiction but has refused to inform their solicitors or the court of his whereabouts. They further deposed that Mr. James has had the opportunity to remove his assets from the jurisdiction, and, in the result, they would not be able to enforce any costs order which this court may make against him. They estimated the value of the claim, with interest and cost thereon to be $1,837,655. 93. Thereupon, they estimated the costs in the appeal proceedings to be about $47,000.00 and pray that this Court would order Mr. James to enter security for their costs in the sum of $20,000.00.
Solicitors for Mr. James filed an affidavit in opposition to the application for security for costs. They state that even if the court were minded to make an order for security for costs at all, it should be for no more than $5,000.00.
I shall first state the applicable principles, briefly, and consider the submissions and circumstances of these applications in light of the principles.
It is trite principle, often repeated in this court, that leave to appeal will be granted if this court is of the view that the appeal has a realistic prospect of succeeding or if there are other compelling reasons why the appeal should be heard. That, of course, is so providing that the delay has not been inordinate and there are good reasons for it.
The order which is the subject of the application for leave to appeal was made on 11 th April 2006 and the application was filed within 14 days on 26 th April 2006. Delay is not an issue because this was quite timely. The critical issue then, on the basis of the affidavits and written submissions, is whether the appeal has a realistic prospect of succeeding or if there are other compelling reasons, a very important issue of law, for example, why the full court should entertain it.
The Master's reasons for refusing to set aside the service of the claim were stated as follows:
"[6] Having set aside the ex parte order permitting the service, it is also necessary to consider the actual service affected pursuant to that order because when an order is set aside, it does not automatically result in the invalidation of steps that have been taken pursuant to such an order, see Ex Parte Jeyeantham [2000] 1 WLR 354. Part 26.9(3) is part of the court's general case management power to rectify matters where there has been a procedural error. This rule can be applied with or without an application by a party and it confers power on the court to put matters right. Part 26.9(2) states that an error of procedure does not invalidate any step taken in the proceedings unless the court so orders. This is clearly an indication of how the court may exercise its discretion. [7] There is no doubt in my mind that the method of service used managed to bring to the attention of Mr. James the proceedings at hand, the acknowledgement of service dated 17 th January 2006, a mere 28 days after the publication in the Daily Observer on the 20 th December 2005.There is no indication that the manner in which the proceedings were served caused any prejudice to Mr. James. In accordance therefore with Part 2[6].9 I decline to set aside the service that has been effected in compliance with the ex parte order that has been set aside and give leave to Mr. James to file a defence herein within 28 days."
The Master relied on Trans-World Metals SA (Bahamas) et al v Bluzwed Metals Limited (BVI) et al3 to support her reasoning and decision.
Rule 26.9 of the Eastern Caribbean Supreme Court Civil Procedure Rules 20004 is under the rubric "General power of court to rectify matters where there has been a procedural error". It states as follows:
"26.9(1) This rule applies only where the consequences of failure to comply with a rule, practice direction, court order or direction has not been specified by any rule, practice direction or court order.
(2) An error of procedure or failure to comply with a rule, practice direction, court order or direction does not invalidate any step taken in the proceedings, unless the court so orders.
(3) If there has been an error of procedure or failure to comply with a rule, practice direction, court order or direction, the court may make an order to put the matters right.
(4) The court may make such an order on or without an application by a party.
Learned Counsel for Mr. James insisted that the appeal has a very good chance of success because in exercising her discretion to refuse to set aside service, the Master made a mistake of law; disregarded principle; misapprehended the facts, took into account irrelevant material and ignored relevant material. The gravamen of their contention is that service by advertisement in the local newspaper amounted to service by an alternative method, which was substituted service under Order 50(4) of the Rules of the Supreme Court 1970. 5 Such service, they said, is only available where the party to be served resides within the jurisdiction and is not merely evading service. According to counsel, Mr. James resided outside of the jurisdiction for some 5 months before the claim was issued and had not left the jurisdiction to avoid service. By their own admission Tasman was aware of this and they did not allege and state any facts in the affidavit in support of the application for substituted service in the local newspaper that he was
evading service. Counsel noted that the notice of the claim as published pursuant to the Master's order of 1 st December 2005 was addressed to Mr. James at Barnes Hill Main Road, St. John's, Antigua.Learned counsel for Mr. James submitted, further, that rule 26.9 is intended to apply where there is mere irregularity, whereas the Master's order of December 2005 was a serious irregularity which cannot be waived by the court. This, according to counsel, is because there are fundamental considerations where service of a claim is to be effected on a party who is not within the jurisdiction of the court in which the claim is brought which make mere notice of the claim in a local newspaper fundamentally insufficient and inappropriate and insufficient that it cannot be validated even if the proceedings are brought to the attention of a defendant.
Service of court process is the...
To continue reading
Request your trial
-
Chester John Claimant v Colonial Life Insurance Company (Trinidad) Ltd Clico Internmational Life Insurance Ltd Defendants [ECSC]
...that an appeal must first be filed before such power can be exercised. He submitted that the judgments of Rawlins JA in Michael James v Tasman Gaming Inc. and Anor. Civil Appeal No.6 of 2006 and Floissac CJ in Kingsley Bowman v Hansraj Matadial Civil Appeal No.7 of 1996 in support this posi......